The Commission enjoys broad discretionary powers with respect to the reception and processing of complaints under the CHRA. The cases highlighted in this section illustrate the type of issues that may result in Commission decisions being challenged before the Federal Court.

Capricious or Unreasonable Decisions
  
Procedural fairness would appear to encompass the duty to avoid capricious and unreasonable decisions. This is illustrated in Jane Hedges-Mckinnon et al. v. Canadian Human Rights Commission²²¹, a judgment of the Federal Court dealing with an alleged discriminatory denial of business expenses incurred by a wife but claimed by her husband under the Income Tax Act.²²² More specifically, Jane Hedges-Mckinnon was a professional golfer who entered into a sponsorship agreement in 1985 with her husband Richard Mckinnon whereby the latter undertook to pay expenses she incurred as a professional golfer. While this arrangement was accepted by tax officials for a number of years, the Canada Customs and Revenue Agency informed Mr. Mckinnon in September of 1997 that the expenses he incurred while sponsoring Ms. Mckinnon could no longer be deducted as a business expense against his income due to the fact that there was no reasonable expectation that the sponsorship would engender a profit. Moreover, in October of the same year, Mr. Mckinnon was reassessed for the taxation years 1994, 1995, and 1996. Ms. Hedges-Mckinnon was reassessed for the year 1996. In making its decision, the Agency explained in detail the objective criteria used to determine if a reasonable expectation of profit existed.

While both parties successfully appealed the Agency's decision to the Tax Court of Canada (judgment issued in November, 1999)²²³, they filed separate complaints to the Commission alleging discrimination on the basis of marital status and, in the case of Jane Hedges-Mckinnon, on the basis of sex as well. With respect to Mr. Mckinnon's complaint, the investigator assigned to the matter determined that the complainant had been allowed the business expenses in question during the course of eight years. It was only after that length of time that federal income tax officials disallowed the expenses on the basis of revenue remaining consistently very much below expenses over the eight year period. Mr. Mckinnon's marital status had been irrelevant to the Agency's decision in that regard. In any event, the investigator concluded that Mr. Mckinnon's complaint was dealt with according to a procedure provided for under another Act of Parliament before the Tax Court of Canada and an appropriate remedy had been awarded, i.e. a ruling that the reassessment had been improper and that the expenses in question could legitimately be claimed by Mr. Mckinnon. For these reasons the Commission decided that an inquiry into the claim of discrimination was not warranted and his complaint was dismissed. The complaint of Ms. Hedges-Mckinnon, which in part related to allegations of discrimination based on sex, was also dismissed by the Commission, on the basis that the facts alleged did not constitute a discriminatory practice and thus fell outside the jurisdiction of the Commission. While Jane Hedges-Mckinnon may have had a grievance with federal tax officials regarding their views about the earning potential of female golfers, the Commission concluded that the dispute about business expenses involved Mr. Mckinnon and the Canada Customs and Revenue Agency.

Upon application for judicial review, the Federal Court looked to whether the Commission's discretionary power to dismiss Mr. Mckinnon's complaint under subsection 44(3)(b)(i) of the CHRA had been exercised in a discriminatory, unfair, capricious or unreasonable manner, or whether its decision had been based on irrelevant or extraneous factors. This test was easily met by both the report of the investigator and the decision taken by the Commission, the Court emphasizing that considerable deference must be accorded the Commission when exercising its screening function under the CHRA. The Court also found that the conclusion of the investigator's report regarding the lack of jurisdiction to proceed with the complaint of Jane Hedges-Mckinnon was reasonable and that there was no basis to contest the decision of the Commission to dismiss her complaint pursuant to subsection 41(1)(c) of the CHRA.

The Federal Court applied the standard of review used in the Mckinnon decision in the subsequent case of Rabah v. Attorney General of Canada,²²⁴ which involved a Commission decision to dismiss a complaint of employment discrimination based on national or ethnic origin. Mr. Rabah alleged that the investigation of his complaint had been inadequate and insufficient. However, the Federal Court found that the essence of the applicant's complaint had been addressed in sufficient detail by the investigator assigned to the case. It found that "[d]eference must be given to administrative decision-makers to access the probative value of evidence and to decide whether to further investigate accordingly. Only where unreasonable omissions have been made, such as the failure to investigate crucial evidence, is judicial review warranted.²²⁵" In the case at bar, Mr. Rabah's allegation that his accent had been used to justify a poor assessment of his communication skills was difficult to reconcile with the fact that six of twelve successful candidates who were ultimately offered employment also spoke accented English. Furthermore, the test criteria used to assess the communication skills of candidates for the jobs in question were found to be objective and to have been applied in a manner free from bias. Given these investigative findings, and in the absence of any evidence that the Commission had dismissed the complaint [under subsection 44(3)(b)(i)] on the basis of irrelevant or extraneous factors, or acted in a discriminatory, unfair, capricious or unreasonable manner, the Court could find no reason to intervene. The application of the complainant to overturn the Commission's decision was therefore dismissed.

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End Notes